93 Decision Citation: BVA 93-02845
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-05 432 ) DATE
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THE ISSUE
Entitlement to an increased rating for postoperative right
inguinal hernia, currently rated 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. J. Dunphy, Counsel
INTRODUCTION
This matter comes before the Board on appeal from a July
1990 rating action of the Nashville Tennessee Regional
Office (hereinafter RO). The veteran served on active duty
from March 1946 to January 1947, and from February 1951 to
May 1951. The notice of disagreement was received in
January 1991, and a statement of the case was issued in May
1991. The substantive appeal was received in July 1991.
The veteran presented testimony before a Department of
Veterans Affairs (VA) hearing officer in September 1991. A
supplemental statement of the case was issued in January
1992. The case was received and docketed at the Board of
Veterans Appeals in April 1992. The Disabled American
Veterans have served as the veteran's representative
throughout the appellate process, and submitted additional
written arguments on his behalf in July 1992.
Service connection for a skull fracture was denied by the
Nashville RO in March 1992. As this issue has not been
developed for appellate review, no action by the Board at
this time is appropriate. It is referred to the RO for any
appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his postoperative right inguinal
hernia is more disabling than currently evaluated. He notes
he has had required repeated operations and continues to
have pain in the area, along with swelling of the right
testicle. He argues that the examination he received from
the VA was cursory in nature, and that an additional
examination is required. He stated that while he had worn a
truss, it did not help the condition and he discontinued
wearing it.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
folder, and for the following reasons and bases it is the
decision of the Board that the preponderance of the evidence
is against the grant of an increased rating for right
inguinal hernia.
FINDING OF FACT
The veteran's right inguinal hernia has not recurred follow-
ing the last surgical repair and he does not currently
require the use of a truss or belt.
CONCLUSION OF LAW
A rating in excess of 10 percent for a right inguinal hernia
is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. Part 4, Codes 7338 (1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Initially, we note that the veteran's claim is well
grounded. By this we mean that he has submitted a claim
which is plausible. We must next consider if VA has met its
statutory duty to assist the veteran in the development of
his claim. We note that the veteran contends that the
examination he received was inadequate. Detailed findings
were reported on this examination, which were consistent
with the veteran's outpatient treatment records and private
medical evaluations. Furthermore, the findings, insofar as
they pertain to the criteria for an increased rating, are
not inconsistent with the veteran's own statements. We
therefore conclude that the evidence currently before us is
sufficient to resolve the appellate issue, and that VA has
otherwise met its duty to assist the veteran in the
development of his claim under the provisions of 38 U.S.C.A.
§§ 5107 (West 1991).
The veteran was admitted to a service medical facility in
July 1946 with complaints of occasional aching on prolonged
standing or marching. He underwent repair of a right
inguinal hernia. The postoperative diagnosis was right
indirect inguinal hernia, reducible, nonstrangulated.
Subsequent to service, repeated right hernia repair was
required. When the veteran was seen in January 1988, it was
indicated his last repair was in 1977.
The veteran's current 10 percent rating reflects a
postoperative recurrent inguinal hernia, readily reducible
and well supported by truss or belt. For a 30 percent
rating to be granted, it must be shown that the hernia is
postoperative recurrent, or unoperated irremediable, not
well supported by truss, or not readily reducible.
38 C.F.R. Part 4, Code 7338 (West 1991). We conclude that
the level of symptomatology required for the 30 percent
rating is not present.
When the veteran was seen in a VA facility in March 1990,
there was a questionable defect in the right lower quadrant
and there was tenderness to deep palpation at the site, but
no indirect hernia was felt. There was no scrotal or testi-
cular pain reported. When the veteran was examined for com-
pensation purposes by the VA in April 1991, he complained of
pain after walking more than a few blocks or carrying more
than 20 pounds. There was no obvious recurrence of a hernia.
These findings were consistent with reports of outpatient
treatment.
The veteran has submitted a September 1991 statement from
Donald R. Fowler, D.O., to the extent that the veteran has a
hydrocele on the right side and a ventricular hernia which
should be repaired. However, no specific findings with
regard to the right inguinal hernia were reported. We have
also considered the testimony the veteran offered with
regard to pain and swelling of the right testicle. However,
the veteran further testified that a truss or belt was not
required, and had not been used for a number of years.
In summary, the evidence does not show that the veteran now
has a recurrent postoperative hernia which is not well
supported by truss or not readily reducible. While he
complains of pain on exertion, this is encompassed by the 10
percent rating presently assigned and does not satisfy or
approximate the criteria for the next higher (30 percent)
rating, which are outline above.
In light this, we find that a rating in excess of 10 percent
for the right inguinal hernia is not appropriate.
ORDER
An increased rating for a postoperative right inguinal
hernia is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
GEORGE R. SENYK
BRUCE E. HYMAN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
CONTINUED ON NEXT PAGE
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.